Monday, December 26, 2016

President Obama is ending his presidency the way he began it – throwing Israel to the wolves. On September 23, 2009, he told the United Nations General Assembly, “America does not accept the legitimacy of continued settlements.” On December 23, 2016, Obama broke with the longstanding practice of both Democratic and Republican administrations to protect Israel from one-sided UN resolutions. He let the UN Security Council pass a resolution declaring that the establishment of settlements by Israel has "no legal validity and constitutes a flagrant violation under international law." The resolution demands that "Israel immediately and completely cease all settlement activities in the occupied Palestinian territory, including East Jerusalem." The Obama administration abstained, rather than veto this resolution as it had done with regard to a similar resolution back in 2011. All other members of the Security Council, including the United Kingdom and France, voted for the latest outrage against Israel coming out of a UN chamber.

U.S. Ambassador Samantha Power shamelessly defended the U.S. abstention as an act to save the so-called “two-state” solution, which Israel’s continued settlements activities were, she said, supposedly jeopardizing. She pathetically reached back to a 1982 statement by then-President Ronald Reagan calling for an end to "the use of any additional land for the purpose of settlements.” In the statement quoted by Ambassador Power, President Reagan said that "the immediate adoption of a settlement freeze by Israel, more than any other action, could create the confidence needed for wider participation in these talks."

Ms. Power quoted Ronald Reagan out of context. In his address, Mr. Reagan was referring to a freeze on settlements during a “period of transition,” which would “begin after free elections for a self-governing Palestinian authority” and could prove that “Palestinian autonomy poses no threat to Israel’s security.” He said that “the United States will not support the establishment of an independent state in the West Bank and Gaza,” but suggested instead “self-government by the Palestinians in the West Bank and Gaza in association with Jordan.”

Ambassador Power left out of her out-of-context reference to the Reagan quote the repeated failures of the Palestinians to negotiate in good faith for more than three decades since that time. She failed to note Israel’s voluntary freezing of new settlements and restrictions on existing ones for four years, between 1992 and 1996. The number of Israelis killed as a result of Palestinian terrorist attacks during that time increased from 34 in 1992 to 56 in 1996, the fifth largest annual total between 1967 and 1996. There were 65 Israeli fatalities from Palestinian terrorism in 1994, smack in the middle of Israel’s settlement freeze.

Ambassador Power also failed to note Israel's unilateral withdrawal from Gaza and dismantling of all settlements there in Gaza in 2005, for which Israel was rewarded with Palestinian terrorists’ firing of thousands of rockets from Gaza into Israel. Finally, she conveniently skipped over Israel’s moratorium on settlement building in the West Bank during Obama's first term in office. During this moratorium, Palestinian terrorists continued to kill Israelis, including a married couple and two other Israelis who were murdered in their vehicle in a Hamas terrorist drive-by shooting attack in the outskirts of Hebron.

In short, all of Israel’s concrete actions to facilitate a peaceful resolution of the conflict and enable a viable two-state solution have foundered because of Palestinian intransigence and terrorism. Yet the Obama administration decided to do the Palestinians’ bidding and let a resolution heaping blame and condemnation on Israel pass the Security Council.

Still pretending to be a friend of Israel, Samantha Power added in her explanatory remarks that abstention rather than veto of the ant-Israel settlements resolution was a difficult vote for the United States "because of where it's taking place: at the United Nations.” She complained “that for as long as Israel has been a member of this institution, Israel has been treated differently from other nations at the United Nations." She said "such unequal treatment not only hurts Israel; it undermines the legitimacy of the United Nations itself." She was correct in those observations. Nevertheless, the Obama administration compounded the "unequal treatment" of Israel by allowing the anti-Israel settlements resolution to pass.

The resolution focuses almost exclusively on Israeli settlements as "a major obstacle to the achievement of the two-State solution and a just, lasting and comprehensive peace." It pays only lip service to Israel's demonstrable security concerns, and contains only a glancing critical reference to acts of terror and incitement to violence by both sides. It specifically calls out Israel for what the resolution claims was its violation of international law. However, the resolution fails to call out Hamas, which governs territory claimed as part of the “State of Palestine,” for incitement to genocide and using civilian facilities such as schools and hospitals to carry out attacks in violation of international humanitarian law. It also fails to cite Palestinian Authority leaders for their incitement to genocide through such channels as official Palestinian Authority websites, Palestinian Authority-sponsored media outlets and in their educational materials. Incitement to genocide, committed by both Hamas and Palestinian Authority officials, violates the Convention on the Prevention and Punishment of the Crime of Genocide.

All that matters to the United Nations and the Obama administration are Israeli settlements. Even there, the resolution mixes apples and oranges. The resolution does not even distinguish between the construction or expansion of arguably illegal outposts east of the Security Barrier, and building within East Jerusalem, which supporters of the resolution presume will automatically be the capital of a new Palestinian state. “By treating all construction as equally problematic, the UN will paradoxically make it harder for future Palestinian, Israeli and American leaders to negotiate,” David Bernstein, President and CEO of The Jewish Council for Public Affairs, said. “It limits their room to maneuver.”

The Security Council anti-Israel settlements resolution, passed with the Obama administration’s consent, is not technically legally binding, because it was not passed under the provisions of Chapter VII of the UN Charter. The resolution is also not formally characterized as a “decision” of the Security Council adopted for the explicitly stated purpose of “the maintenance of international peace and security.”

However, the resolution sets down a clear marker that “the establishment by Israel of settlements in the Palestinian territory occupied since 1967, including East Jerusalem, has no legal validity and constitutes a flagrant violation under international law.” With such an unambiguous declaration, now supported or at least unopposed by all five permanent members of the Security Council and most member nations of the UN, the resolution may be deemed as evidence of “customary international law” on the subject of Israeli settlements activities. Palestinians and their supporters would then be better positioned to cause mischief for Israel at the International Criminal Court (ICC), which the so-called government of Palestine has joined. A “preliminary examination into the situation in Palestine” is currently underway at the ICC. The Palestinians and their supporters may also seek to exploit the Security Council resolution’s finding that Israel’s settlements are in “flagrant violation under international law” to pressure the UN and member states into boycotting the purchases of any products or services remotely connected to firms doing any business in the West Bank or East Jerusalem. Even before the Security Council resolution was passed, the UN’s High Commissioner for Human Rights, Zeid Ra’ad Al Hussein from Jordan, sought to have the UN's procurement division consider launching what would amount to a blacklisting and boycott of Israeli businesses and international companies with ties to the West Bank, East Jerusalem and Golan Heights.

Israeli Prime Minister Benjamin Netanyahu has already stated that “Israel rejects this shameful anti-Israel resolution at the U.N., and will not abide by its terms.” Fortunately, starting on January 20, 2017, Israel will finally have a friend in the White House who recognizes the difference between a democratic ally and a gang of thugs pretending to be a nation state.

"As to the U.N., things will be different after Jan. 20th," tweeted President-elect Donald Trump. One of the first things that he should do upon taking office is to declare that the United States repudiates anything in the Security Council anti-Israel settlements resolution that denies or calls into question the legal validity of Israel’s existing or future settlements activities. He should make clear that any effort by the UN or member states to institute a boycott will result in serious adverse financial consequences to them. And he should announce that the United States will move its embassy in Israel from Tel Aviv to the undivided capital of the Jewish state, Jerusalem.Obama pulls a bait-and-switch on anti-Israel Security Council vote

The Obama administration pulled a bait and switch in refusing to veto the recent Security Council resolution against Israel. In attempting to justify its abstention – which under Security Council rules has the same effect as a vote in favor – the administration focuses on “new” settlement building, especially in areas deep into the West Bank.

“Today, the Security Council reaffirmed its established consensus that settlements have no legal validity.... President Obama and Secretary Kerry have repeatedly warned – publically and privately – that the absence of progress toward peace and continued settlement expansionwas going to put the two-state solution at risk, and threaten Israel’s stated objective to remain both a Jewish State and a democracy ... This resolution reflects trends that will permanently destroy the hope of a two-state solution if they continue on their current course.”(emphasis added)

Likewise Ben Rhodes, Obama’s Deputy National Security Advisor, said:

“Netanyahu had the opportunity to pursue policies that would have led to a different outcome today.... In the absence of any meaningful peace process, as well as in the accelerated settlement activity, we took the decision that we did today to abstain on the resolution.” (emphasis added)

In a press release, the pro-Obama advocacy group J. Street welcomed America’s abstention, citing a poll showing “that 62 percent of Jewish voters believe the United States should either support or abstain from voting on a United Nations Security Council resolution calling on Israel to stop building settlements in the West Bank.”(emphasis added)

But the text of the resolution itself goes well beyond new building in these controversial areas and applies equally to historically Jewish areas that were unlawfully taken by Jordanian military action during Israel’s War of Independence and liberated by Israel in a war started by Jordan in 1967.

The text of the Security Council Resolution says that “any changes to the 4 June 1967 lines, including with regard to Jerusalem,” have “no legal validity and constitutes a flagrant violation under international law.” This means that Israel’s decision to build a plaza for prayer at the Western Wall – Judaism’s holiest site – constitutes a “flagrant violation of international law.” If it does then why did President Obama pray there and leave a note asking for peace?

Is it really now U.S. policy to condemn Israel for liberating these historically Jewish areas in Jerusalem? Does Obama really believe they should be made judenrein again, as they were between 1949 and 1967?

If so, why didn’t the administration openly acknowledge that it was changing half a century of bipartisan support for Israel’s claims to these sacred areas? If not, why did it not demand changes in the language of the resolution to limit it to new building in disputed areas of the West Bank?

The Obama administration can’t have it both ways. It must now declare where it stands on Israel’s right to allow prayer at the Western Wall, access to Hebrew University and Hadassah Hospital, and the repair of destroyed synagogues to the Jewish Quarter.

J Street, as well, has an obligation to its members – many of whom pray at the Western Wall and have deep connections to Hebrew University and Hadassah Hospital and the Jewish Quarter of Jerusalem – to advise them whether the organization supports Israel's abandoning these Jewish areas until Palestinians agree to a negotiated settlement.

The media, as well, should clarify the impact of the resolution beyond new building in the West Bank, so that all Americans well know what their President supported.

President-elect Donald Trump and Congress can make it clear that it is not U.S. policy that all changes “to the 4 June 1967 lines, including with regard to Jerusalem” are in violation of international law. The new president can immediately recognize Jerusalem as the capital of Israel and begin the process of moving our embassy there.

The justification for keeping it in Tel Aviv was not to change the status quo, but that justification no longer exists because this resolution does precisely that: it declares the status quo – the reality on the ground that acknowledges Israel’s legitimate claims to its most sacred and historical Jewish areas – to be flagrant violations of international law. Congress can legislate no funding to implement the Security Council’s troubling resolution.

If the Obama administration refuses to announce that it supports the language of the resolution that applies to the Jewish areas discussed above, then the entire resolution should be deemed invalid because the U.S. did not cast its abstention – the equivalent of a yes vote – in good faith.